What's That Smell?

By
Dunham & Ingram LLC
|August 07, 2017

Pop quiz!

You've been pulled over for not coming to a complete stop at a stop sign. An officer walks up to your car, tells you why you've been pulled over, and asks for your license and registration. While you are getting that for him, he says that he thinks he smells marijuana and asks you for your consent to search the car. Should you,

Allow him to search your vehicle

Tell him a search is not necessary and that you have drugs in the car

Offer him a hit off your joint

None of the above

As you may have guessed, usually the correct answer is D. Ever since the legalization of medicinal marijuana in Florida, the smell of marijuana alone should not constitute probable cause to search a vehicle. This is because probable cause arises when an officer has a reasonable suspicion of illegal activity. If medicinal marijuana is legal, then smell alone does not raise suspicion of ILLEGAL activity. He may very well ask you if you have a prescription or medicinal marijuana card, but an outright search is usually impermissible.

What you need to remember is that a prescription for medicinal marijuana is not an excuse to carry more than the legal amount or to carry other drugs. A court in California found that the presentation of a medicinal marijuana card during a search that has already commenced does not destroy probable cause. The Court in that case held that the defendant could have used the medicinal marijuana card as a defense in court, but not as a bar from search and arrest since the search had already begun.

There are no Florida cases on point yet, but if we learned anything from the California case, it is that if you are going to try to prevent the search of your vehicle by claiming that you are in legal possession of marijuana, you must do so before any search begins. While it is not a certainty whether courts in Florida will find that the smell of marijuana coupled with the presentation of a medicinal marijuana card will defeat probable cause, there is a strong argument to be made.

If you believe that your car has been illegally searched or if you have recently been prescribed medicinal marijuana and want to know your new rights under the new law, please do not hesitate to contact a lawyer. The idea of probable cause in the age of medicinal marijuana is a new and emerging legal question which may someday make its way to the Supreme Court of the United States. Until then, civil rights advocates and supporters of medicinal marijuana or even recreational marijuana need to be vigilant and make strong arguments in support of your rights.

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